Tuesday, March 03, 2009

A good example of a Law-Bug (in the DMCA):

This post continues a topic I began on February 19.

Another law-bug has plagued us in recent years, that really illustrates what I mean when I say a law has a bug. The DMCA protects the owners of copyright with the ability to make “takedown” notices. The concept is simple: you notice that some website is displaying a picture, video, song, a book text or whatever ; something whose copyright belongs you. You don't want them to display it; you never gave them permission. So you send whoever is operating their website a “takedown” notice, and they must remove it.

The people who wrote this law considered that there might be some reason for the victim of the takedown to reinstate his item, and the law provides a cumbersome procedure for that. They also considered that some nasty outsider might try to make malicious takedowns, so they made another cumbersome procedure, with nasty fines, to deter malicious takedowns. (Not surprisingly, malicious takedowns are much more common than fines for issuing them.)

We know today that it was incredibly stupid of the legislators to assume that almost all takedowns would be issued by lawyers of large media companies who know exactly what they have the rights to. Many companies have used these notices to get rid of any web content that offends them, even content they do not own. Takedowns might be less common if the person issuing a takedown had to do anything reasonable to show a right to do it; but they don't. It's cheap to issue one takedown about one creation, even if you've no right to do it. It's fairly expensive to combat that takedown notice when you know it's wrong.

Bad bug.
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